R. v. Gillanders, 2015 ONCJ 348

ONTARIO COURT OF JUSTICE CITATION: R. v. Gillanders , 2015 ONCJ 348 DATE: 2015·06·23 COURT FILE No.: Regional Municipality of Durham 998 13 13601 BETWEEN: HER MAJESTY THE QUEEN — AND — Troy Gillanders Before Justice J. De Filippis Heard on October 23, 24,& 28, 2014; January 20, 21, & April 30, 2015 Reasons for Judgment released on June 23, 2015 Mr. F. Stephens........................................................................................ counsel for the Crown Mr. I.

Neuman..................................................................................... counsel for the Defendant De Filippis J.: [ 1 ] The defendant was charged with dangerous operation of a motor vehicle, assault causing bodily harm, and mischief under $5,000.00. [1] The offences are said to have occurred on August 11, 2013 at a farm in the Township of Scugog. The defendant is the owner of the farm and the complainant was working there at the time.

It is alleged that the defendant assaulted and injured the complainant after having driven his vehicle in such a manner that it struck another one operated by the complainant, thereby also causing damage to a hydro pole. [ 2 ] Photographs of the complainant, taken by the police on August 12, show bruises to the left side of his face and a scratch mark at the centre of his back. Photographs taken by the police several days later reveal a damaged hydro pole with marks on it consistent with it being struck and/or scraped by a truck or trailer. [ 3 ] The Crown called two witnesses; P.C. Knight and Louis Dodds.

The Defence called Jazmine Baird-Meyers, Lori Tuck, and Tom Thomas. I allowed a Defence application to file an Affidavit previously sworn by Jesse James Gunn. At the conclusion of the evidence the Crown invited me to dismiss the mischief charge. These reasons address the outstanding charges and explain why I find the defendant not guilty. [ 4 ] The complainant has worked in a variety of jobs in the farming sector. In the two years before this incident, he purchased hay from the defendant for resale. In the summer of 2013, he worked at the defendant’s farm.

In this regard, he brought his own truck, float, tractor, and hay rake. He also brought “a helper”, Billy Eades, a man in his early seventies. Both men lived on the farm during this time. The complainant was “paid in hay” for his work. He said he loaded 38 bales, three times a day, over a radius of 20 miles and transported this for storage. [ 5 ] The complainant testified that the manner in which the defendant worked was unsafe because he “cut hay too fast” and was often under the influence of marihuana. He said that when he raised these safety issues, the defendant told him to mind his own business.

This concern came to a head on August 11, 2013. According to the complainant, the defendant’s “wife [Lori Tuck] ordered me – not asked – to move the [hay] elevator”. The complainant went outside and saw Mr. Eades climb up the elevator. Fearing it was not secured properly, the complainant told Mr. Eades to come down. When the latter ignored him, the complainant went back to the house and told Ms Tuck he was leaving. It was about 10:30 PM. The complainant described himself as “angry but trying to be as cordial as possible”.

He conceded he may have slammed the door on his way out of the house. [ 6 ] The complainant drove his truck with two trailers down the “long driveway”. He said the entire unit measured 70 feet in length and

all his lights were on. Once he had driven about one-third of the way, he saw the defendant coming towards him in a tractor. The complainant testified that as he pulled over to allow the defendant to pass, he “saw how fast he was coming – the hay wagon behind him was bouncing”. Jesse Gunn was riding in the tractor. He stated that the defendant’s motor vehicle struck his trailer and “then in a split second, Troy opens my door and pulls me out to the ground and continuously hit me while shouting ‘you can’t leave’”. The complainant estimated the distance from the seat of the truck to the ground is about six feet.

He stated that the defendant said “You’re not very tough Dodds” and left the scene. [ 7 ] The complainant testified he was “in and out of consciousness” and on standing up realized his trailer was “up against the pole”. He examined the trailer and saw that the axle and leaf spring were damaged. He added that his shirt “was pulled right off”. He left the property in his truck and did to speak to anybody until the next morning.

He explained that as he drove home he started vomiting so he “pulled over and spent the night in the truck”. [ 8 ] The following day, the complainant returned to the Gillanders farm with the tools and parts needed to repair his trailer. He connected it to his truck and drove home. En route he felt ill and stopped to report the incident to the police. He testified that “I went into convulsions….I was in bad shape and went to the hospital”. He was examined and released with instructions to see his family doctor.

The complainant stated that as a result of the attack, “I have lost mobility, have a high level of pain, and my stamina is gone….I am going to have to give it up” [i.e. work]. He added that in the following weeks he slept long periods of time and often cried. He was prescribed “pain killers and medication for my emotions”. [ 9 ] The complainant acknowledged that he has had serious injuries in the past. In the 1990’s he “broke [his] spine in a road accident”. In 2008 a horse fell on him, causing ‘a fractured pelvis in twelve places”.

He suffers from chronic pain – “sciatica” - which, he claims, has worsened since this assault. [ 10 ] The complainant said he had one key for the truck and it remained in the ignition during the events in question. In his report to the police he stated that when he was on the ground the defendant threw these keys at him and that he did not know how the defendant had obtained them. When confronted with this inconsistency, the complainant affirmed his trial testimony and said the prior statement is “due to the medication”. [ 11 ] The complainant rejected the assertion that he brought Mr.

Gunn to work at the defendant’s farm. He explained that Mr. Gunn “is a dangerous person” and that he and his girlfriend, Jazmine Baird-Meyers, “were not interested in working”. He denied being intoxicated on the evening in question and stated it was his practice to have one beer at the end of each working day.

He also denied that he struck the pole in his rush to leave the farm and did not go to the police or hospital on the night in question because he feared being charged with driving while drunk. [ 12 ] At the conclusion of the complainant’s cross-examination, the following exchange occurred: Q: Do you recall telling Troy and Lori you had participated in a murder? A: The Canadian government has forgiven me for that. Q: Did you tell them you moved a body? A: I’m not answering that. [ 13 ] I asked the complainant to tell me why he did not want to answer the question.

He explained that he did not believe the question was relevant as he had received a pardon. He complied with my direction to answer the question and stated as follows [2] : Many years ago a friend was the subject of extortion by a member of the Last Chance Motorcycle Club. When the friend was “pistol whipped’ and his wife threatened with rape, that friend shot and killed the biker. I helped my friend bury the body and later moved it to another location. This came to the attention of the authorities and I was sentenced to 18 months in jail for burying and moving the dead body.

I was eventually pardoned. [ 14 ] Records obtained by the Crown during the trial confirm that the complainant was sentenced to 18 months in jail and later pardoned. [3] [ 15 ] After the defendant was arrested he provided a video recorded statement to the police. The Crown tendered the statement as part of its case. The defendant reported the following: [4] He [the complainant] got pissed [drunk]. I don’t drink and there are no drinks on my property. He ran me off the road. Usually family members pull over for me.

He moved [his truck and trailers] back and forth four times and ruined the hydro pole because he’s hammered. I took out his keys. He got out and hit his head. This all started the night before when he called his mistress and she said no. He has a hatred for women. He lost it on my wife and called her a slut. He ran me off the road and hit my tractor. I got upset with him. I pulled over as far as I could near the pole but he kept trying to manoeuvre around me. I told him to relax but he lost it on me again. He came barrelling at me with two tractors in tow. I opened his door. He called my wife a whore.

I ordered him off my property. I pulled over near tree to let him pass and he hit the pole. I got out and tried to calm him down as he moved the trailer back and forth on pole to try to get out. His axle broke and he returned the next day to fix it. I reached in the open door of his truck and grabbed the keys. I know he has murdered and been pardoned. He has heard him talk about carrying a gun. I threw keys back at him as he’s a madman. [ 16 ] The defendant reported that there was no physical contact with the complainant and denied punching or kicking him.

He said the complainant “fell out of the tractor and hit his head off the door when I pulled out the keys”. When the interviewing officer suggested the injuries to the complainant were inconsistent with falling down, the defendant said, “maybe he was beaten up that night by his mistress’s

boyfriend”. When asked why he had not called the police to report the complainant had damaged a hydro pole and caused a power outage, the defendant replied he has had bad experiences with the police and feared the complainant. [ 17 ] Jazmine Baird-Myers was the first Defence witness. She testified that in August 2013, she was in a relationship with Jesse James Gunn. They were acquainted with the complainant and introduced by him to the defendant. They lived at the Gillanders farm for a few days while Mr. Gunn was employed to “help with the hay”.

On the day in question, in the early afternoon, she heard the complainant and “Billy” [Eades] argue about moving the hay elevator. She saw the complainant walk to the farmhouse, “muttering to himself”, and get a bottle of beer. By sundown he had another three bottles of beer and then announced he was “going home”. He was on the porch and Ms Baird-Myers was in the kitchen with “Lori” [Tuck]. She described the complainant as “not wasted, but not able to drive”.

Afterwards, she heard “a bang” and saw a “flash of light” and “all the power went out”. “Tom” [Thomas] came down from the second floor of the farmhouse and said “someone hit the pole”. Ms Tuck and Mr. Thomas took a flashlight and went to the area of the collision. [ 18 ] Ms Baird-Myers testified that she and Mr. Gunn had previously lived at the complainant’s home for two to three months. She acknowledged that she and Mr. Gunn regularly smoked marihuana and added that the complainant “liked to drink”. She described Mr.

Gunn as untrustworthy, violent and fond of alcohol and drugs but noted that he “can be a good guy at times”. Ms Baird-Myers is no longer in a relationship with Mr. Gunn has not seen him since November 2014. [ 19 ] Lori Tuck is the defendant’s spouse. They have two children. She described their farm as a busy place “with hay and livestock”. She testified that the complainant occasionally purchased hay from them in the past and came looking for work in 2013. He said he had “no money to put food on the table” so the Gillanders “took him on for the summer”.

As part of the compensation, he was provided with a room and meals. [ 20 ] Ms Tuck testified that the on the evening before the events in question, she overheard the complainant talking on the telephone “in an agitated state”. She heard him say, “we can work this out”. The following day he put a case of beer in the fridge and began drinking in the afternoon. Ms Tuck found this odd as the complainant usually enjoyed a beer in the evening. During the course of this day she observed him to have “at least five beers”.

She testified that as she prepared dinner the complainant came to the kitchen and asked for the defendant. His words were loud and slurred. Ms Tuck was annoyed by this and told the complainant to move the hay elevator. The latter complained that he did not know how to do that. Mr. Eades, who was in the room, interjected to say he would instruct him. According to Ms Tuck, the complainant “grabbed another beer” and the two men departed. However, the complainant returned ten minutes later and said, “this guy’s fucking crazy, I’m out of here….I gotta be somewhere and will return in a day or two”.

Ms Tuck said he “grabbed his clothes and left, slamming the door”. Soon after, the power went out and “Tom” came downstairs and said someone hit the hydro pole. [ 21 ] Ms Tuck said she and Mr. Eades drove to the scene of the collision. It was about “eight or nine o’clock”. She described a long “driveway” running east and west from the house to the regional road. The hydro pole in question is on the north side driveway. Directly opposite, on the south side, are trees. It is clear from Ms Tuck’s evidence that it is not possible for two motor vehicles to safely pass each other at this point.

She saw that the pole had been hit and was tilting. The complainant’s vehicle was beside it. She also saw the defendant and complainant near the pole, “about twenty feet apart, staring at each other”. Neither man spoke. Mr. Gunn, who had been standing in the same area, came over to Ms Tuck and said, in reference to the complainant, “he’s fucking hammered”. Ms Tuck realized she had “walked into something”’ and left to attend to her young child.

She testified she did not see the complainant again that night but that later in the evening he telephoned to apologize for hitting the pole and to report he had left the trailer. Ms Tuck replied that if “there is a bill for the pole, we will send it to you”. [ 22 ] Ms Tuck testified that a few days before these events, the complainant told her and Mr. Gillander that he and a friend had once “killed a biker” and buried the body. The complainant reported that since he did not trust his friend, he dug up the body and moved it.

Ms Tuck understood the complainant to be saying “he got away with murder but did jail time for something else – being caught after the fact”. She added that the complainant said he had been in jail many times because of his friend’s betrayal and always carried a gun. Ms Tuck testified that she and Mr. Gillander were uncertain what to make of this story and they simply wanted him to finish the job and leave the farm. She reported the story to Defence counsel two weeks before the start of the trial. [ 23 ] Tom Thomas is a tenant at the Gillanders farm. He rents a room on the second floor.

He testified that “around 6 PM’ on the day in question he went outside to the deck off his room and saw a hydro pole some distance away “move back and forth and then the power went out”. He saw a motor vehicle with its headlights on and assumed it had collided with the pole. He got a flashlight and walked to the site. He saw the complainant’s truck with two trailers in tow and loaded with equipment. He also noted that the complainant’s shirt was “ripped”. No other person or vehicles were present. One of the trailers was “jammed into the pole”.

He testified that the complainant was “pretty passionate”, complaining about the day’s events, women in general and especially Ms Tuck, who was referred to as “a bitch”. Almost immediately, the complainant apologized for his outburst. Mr. Thomas noted that the complainant “was all over the map” and believed him to be intoxicated. [ 24 ] Mr. Thomas “acted as a flagman” to help the complainant move the trailers out. He observed that “it takes a lot of skill to move a double trailer”. The complainant completed the task and after inspecting the damage to one of the trailers he unhooked the truck and left. Mr.

Thomas asked if he “was okay to drive” but now concedes he should have called the police about a possibly impaired driver. [ 25 ] The Defence applied to have the Affidavit sworn by Mr. Gunn admitted into evidence. He was working at the Gillanders’ farm on the day in question. In April 2014, Mr. Gunn was incarcerated at the Central East Correctional Centre. He was interviewed there by Defence counsel, with the assistance of his daughter, Ms Hannah Neuman. She is now a university student and was working for her father at the time. The Defence attended upon Mr. Gunn without prior notice to him.

He agreed to provide a statement. Ms Nueman testified that before doing so, Mr. Gunn stated he understood the importance of telling the truth. He was asked a few non-leading questions by Mr. Neuman, the first of which was “Tell us what you recall happened”. Ms Neuman testified that Mr. Gunn provided an account, without the use of notes. She said she took down the statement to the best of her ability, interrupting Mr. Gunn several times so she could keep up with his narrative. Although not a verbatim record, she believes it to be accurate. She testified that Mr.

Gunn was asked to read over the statement before signing it, that he was told by Mr. Neuman that it would become “a court document”, and that “it

is an offence to lie”. Mr. Gunn acknowledged this and affirmed the document before Mr. Neuman. [ 26 ] The Defence subpoenaed Mr. Gunn to give evidence at this trial. He appeared before me and, as requested by the Defence, he was bound over to a future date. He failed to appear and I issued a warrant for his arrest. At present there is also a Canada wide warrant for his arrest for outstanding charges and his whereabouts are unknown.

Since 2006, he has been found guilty of 26 offences, including numerous breaches of court orders as well as threats, thefts, robbery and assault. [ 27 ] The Affidavit is as follows: I, Jesse James, of the Town of Lindsay, in the Province of Ontario AFFIRM AND STATE AS FOLLOWS: 1. I was at the farm belonging to Troy Gillanders on the 11 th day of August 2013. 2. I am informed by viewing a copy of court information 13-A13601 and believe that the farm is located at 8499 UXB CON RD 3, UXBRIDGE, ON L0C 1E8 3.

I know from having been at the farm that it is located in Uxbridge, Ontario and that Troy Gillanders lives at the farm with his partner Lori Tuck and his son. 4. Louis Dodds hired me to work on Troy Gillanders farm (Gillanders Farm). 5. Prior to Louis Dodds taking me to Gillanders Farm I had not met Troy Gillanders or his family. I had not been to the Gillanders farm before. 6. I was a witness to the following events: a. On August 11 th shortly before sunset when Troy Gillanders and I delivered a load of straw to a neighbor, Rick, at his horse farm across the road. b.

While driving in the tractor back up the driveway to the Gillanders Farm, I saw Louis Dodds’ red and white truck coming down the road – towards the tractor. There was a float attached to the truck. c. Troy Gillanders (Troy) pulled the tractor to the side and stopped. d. The red and white truck stopped. Louis Dodds (Louis) got out of the truck and approached the left side of the tractor. I was sitting on a fold-down seat on the left side of the tractor and I opened the door so Louis could talk to Troy. e. Louis started yelling at Troy I recall him saying “I don’t want anything to do with this ‘gong show’.

Safety first”. f. Louis returned to his truck and drove past the tractor. The float on the truck hit the hay wagon attached to the tractor. The tractor was not moving. g. Louis drove the truck into the hydro pole at the side of the road, causing the wires to spark and the hydro to lean. h. Louis backed up the truck and hit the hydro pole twice more. After the third contact, the pole was leaning at about a 45 degree angle. i. Troy said, “this crazy guy is going to kill us Troy got out of the tractor and climbed up on the foot board on the left side of the truck.

Troy reached into Louis’ truck and removed the keys from the ignition. j. From my vantage point in the tractor, I saw Louis try to punch Troy in the head. k. Troy pulled Louis out of the truck and Louis tried to hit Troy again. Troy dodged the punch and hit Louis, putting him on the ground. This was done in one motion. l. I heard Troy ask Louis if he was okay and after he helped him up from the ground Troy then said “What the hell are you doing?” m. Louis started apologizing and blaming everything on Troy’s wife, Lori. n. Louis then started crying, hugging Troy, and apologizing over and over.

Lori, Bill (another farm employee) and Jasmine (a friend of mine) arrived on scene. They were coming from the farm house. I had noticed that the power went out in the farm house at some point during the three collisions Louis had with the hydro pole. o. Troy, at some point, had returned the keys to Louis. I know this because Louis got into the truck and moved it out of the way, further down the drive. I saw the axel of the float behind the truck had broken. p. Troy and I drove the tractor to the house to drop off the hay wagon. We then collected rocks to help stabilize the hydro pole.

By the time we returned to the hydro pole, Louis and his truck had gone, leaving the float behind. q. I had seen Louis drinking beer at various times throughout the day.

[28] The proposed evidence is hearsay. As such, it is presumptively inadmissible unless an exception applies. Hearsay that does notfall under a traditional exception can be admitted under the principled approach if the indicia of reliability and necessity are established. This is discussed by the Supreme Court of Canada in R v Khelawon 2006 SCC 57 , [2006] S.C.J. 57. In this case, necessity isnot disputed; Mr. Gunn is a fugitive and it is not suggested I should wait for him to be found. Reliability is the issue.

This can beestablished by showing that (1) there is no real concern about whether the statement is true because of the circumstances in which itcame about or (2) its truth and accuracy can be tested by means other than contemporaneous cross-examination. [29] During the voir dire to determine admissibility, the trial judge determines threshold reliability. The ultimate weight to be given tothe evidence is another matter. As noted in Khelawon, this does not necessarily mean that the factors to be considered are dependent onwhether the inquiry is about threshold or ultimate reliability. It depends on the context.

In addition to Khelawon, I have also consideredR v Sunjka [2006] O.J. No. 2204 (Ont. C.A.) and R v Pan 2014 ONSC 5753 , [2014] O.J. No. 5959 (S.C.J.). In the latter case,it was noted that a court has a residual discretion to relax a strict rule in favour of the defence in appropriate circumstances and thatadmissibility may be proper if the Defence demonstrates the evidence has “some reliability”. This, of course, does not mean the dangersof hearsay evidence are to be ignored in a Defence application. [30] I find the Defence has established threshold reliability and I admit the evidence.

In so doing, it is of some relevance that theDefence acted diligently in attempting to secure the attendance of the witness. More importantly, I find as a fact that the affidavit is afaithful account of what Mr. Gunn said. Although the statement was not video or audio recorded, I am confident of that conclusionbecause of the brevity of the statement, Ms Neuman’s testimony about its accuracy, and the few non-leading questions that produced it. Mr. Gunn acknowledged the importance of telling the truth and that he understood it is an offence to lie in giving the statement. I alsorely on the fact that it is clear Mr.

Gunn is a witness to the events and the absence of any obvious bias on his part. Mr. Gunn’sunavailability for cross-examination is a significant concern. So too, is the fact he is a fugitive with a criminal record and described byhis then partner as untrustworthy. However, in the circumstances of this case, these considerations are relevant to the weight to be givento the evidence. [31] The Defence argues that the complainant’s testimony does not fit logic or known facts: He said he was “greatly” injured but leftpremises without going to the police or hospital.

Indeed, before leaving he examined his trailer for damage and returned the next daywith the part needed to repair it. Then he consulted with a friend and went to hospital. The reality, counsel asserts, is this: Thecomplainant left while impaired. This is why he did not go to the police. The bodily harm is not as described and present difficulties aredue to previous injuries. This is why he was able to assess the property damage before departing and return the next day to repair thetrailer. The bodily harm claimed by the complainant is a pre-existing condition caused by other events.

Defence counsel submits thatthe damage to the pole, as captured in the photographs of it taken by police, is consistent with the statements by the defendant and Mr.Gunn that the complainant was moving the trailer back and forth as he tried to extricate it from the increasingly tilting pole. It is alsoargued that the defendant would not fight with a man who acknowledged moving a body and carrying a gun. [32] The Crown claims that there can be no doubt that on the complainant’s version of events the defendant is guilty of dangerousdriving.

To accelerate towards the complainant on a narrow two land road, while the latter was driving a truck and pulling two tractorsmeets the test described by the Supreme Court of Canada in R v Hundal (SCC), [1993] 1 S.C.R. 867 and R v Beatty2008 SCC 5 , [2008] 1 S.C.R. 49. Counsel submits that the defendant implicitly admitted this version of events in hisstatement to the police when he said “usually family members pull over for me”. The Crown argues that other evidence confirm thatthe complainant was assaulted. The photographs show bruises on his face and back and Mr. Thomas saw that his shirt had been torn.

According to the complainant, the defendant said, “you can’t quit” and “you’re not a tough guy”. These statements negate anysuggestion defendant feared him because of a reputation for violence. Moreover, the complainant is much older than the defendant. Thecomplainant described the physical pain and psychological harm caused by the assault, such that he cannot work. This, it is arguedconstitutes bodily harm. [33] The criminal law standard of proof is set out in the often cited decision of the Supreme Court of Canada in R v W.D. (1991) (SCC), 63 C.C.C. (3d) 397.

A criminal trial is more than a credibility contest between different versions of events. Tosupport of a finding of guilt, each element of the offence must be proven beyond a reasonable doubt. In a case where the Defenceadduces evidence to the contrary, that standard is not met if it (

i) is believed, or (ii) is not believed, but leaves the trier of fact inreasonable doubt, or (iii) does not leave a reasonable doubt, but the remaining evidence fails to convince, beyond a reasonable doubt, thatthe defendant is guilty. This does not mean the Defence evidence is to be viewed in isolation; on the contrary, it is to be assessed incontext of the entire case: F v R.D. [2004] O.J. 2086 (O.C.A). [34] The only third party witness to the events that form the subject matter of the charges is Mr. Gunn.

It is clear that Ms Tuck cameupon, and left, the scene of the collision before any confrontation between the parties and that Mr. Thomas arrived afterwards. According to Mr. Gunn, the complainant is responsible for colliding with the hydro pole and the defendant acted in self defence; hereported that the defendant punched the complainant in the head and pulled him out of the truck after the former persisted in trying todrive away and had taken a swing at him. [35] Mr. Gunn’s affidavit confirms some elements of the complainant’s testimony and the defendant’s statement.

Having regard to allreliability factors previously noted with respect to the Gunn affidavit, all I can safely take from that evidence is that there was aconfrontation between the defendant and complainant after the hydro pole was damaged. There is no reason to conclude Mr. Gunn islying or mistaken about this. Indeed, having regard to the photographs of the pole and the complainant, I accept it as fact. This issignificant because it contradicts the defendant’s statement to police that there was no physical contact between them. I also accept,because it is confirmed by other evidence, that Mr.

Gunn observed that the complainant exhibited mood swings and had been drinkingbeer earlier in the day. [36] I find that the defendant lied to the police when he denied any physical contact with the complainant. His claim that any injuriessuffered by the complainant might have been caused by a jealous man is an obviously flippant remark designed to evade questions put tohim. However, I do accept his admission that he was upset and observation that the complainant was intoxicated. The latter is confirmedby several other witnesses.

[ 37 ] The testimony of Ms Bair-Meyers, Ms Tuck, and Mr. Thomas is inconsistent in several matters, such as the time of the power outage and who went to the scene of the collision with whom. These are not material issues. However, they all agree on two important facts; namely, the complainant was angry and exhibited signs of intoxication. The credibility and reliability of these witnesses was not seriously undermined. The complainant admitted he was angry but denied being “drunk”. I do not believe him on this point. I accept the evidence of Ms Tuck, Ms Bair-Myers, and Mr.

Thomas that his state of inebriation was such that he should not have operated a motor vehicle. For this reason, I cannot be confident of the reliability of his evidence. [ 38 ] It is clear, and I find, that the complainant and defendant were both agitated on the night in question, the complainant’s vehicle came into contact with the hydro pole, and the two men struggled. The rest of the scene at the hydro pole is rather hazy.

Since I cannot rely on the account given by either the complainant or defendant, I am unable to ascertain the true state of affairs and determine if the defendant drove dangerously and assaulted the complainant. Indeed, having regard to the latter’s impairment, it is possible that he is responsible for colliding with the pole. The prosecution evidence about the assault is stronger; the photographs and the complainant’s ripped shirt confirm an altercation between the men and suggest the defendant was victorious.

However, the evidence does not permit me to find, beyond a reasonable doubt, that whatever happened, amounts to an assault by the defendant upon the complainant. Moreover, given the previous serious injuries suffered by the complainant, I could not conclude that the altercation caused the physical or psychological harm experienced by him. [ 39 ] The charges are dismissed. Released: June 23, 2015 Signed: “Justice De Filippis”